On April 27, 2011, the California Supreme Court denied several requests to depublish the opinion in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. California Rules of Court, rule 8.1125, authorizes this unusual request. In Sunnyvale, the Sixth District Court of Appeal held the City violated CEQA because its EIR for a proposed roadway improvement project failed to analyze the project’s impacts against existing, present day conditions. Instead, the EIR used as its baseline for analyzing project impacts projected traffic conditions in the year 2020, the year the City expected the project to actually go on line. According to the court of appeal, the failure to analyze the project’s impacts against existing conditions, even if apparently such an analysis is wholly artificial, constituted a failure to proceed in a manner required by law. For more information on the case, see our blog post of January 19, 2011.

Several entities asked the Supreme Court to depublish the Sunnyvale opinion because the opinion sets out a standard of review that appears to be contrary to recent Supreme Court holdings. For instance, the Sunnyvale court held that reliance on a future environmental baseline constituted a failure to proceed in the manner required by law, and that the reviewing court owes no deference to the agency’s determination of the baseline in this instance. The Sunnyvale court’s no-deference holding appears to contradicts the Supreme Court’s recent holding in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, for instance, which established that an agency’s decision regarding the environmental baseline is a “factual issue” that is entitled to substantial deference. The opinion also establishes a bright-line rule, prohibiting the use of a future environmental baseline in any EIR. Those seeking to have this case depublished argued that its inflexible, “black and white” approach to environmental analysis will not lead to meaningful data, noting that the Supreme Court and other courts of appeal have rejected this type of bright-line rule in previous cases, such as Communities for a Better Environment v. SCAQMD, supra, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, and Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316. In point of fact, many projects will not be constructed or on line until many years after project approval, so analyzing the project against existing environmental settings provides agency decisionmakers with no realistic insight into the potential impacts of such projects. Despite these arguments, the Supreme Court denied the requests to depublish Sunnyvale.

The court’s decision to deny the request for depublication is important because Sunnyvale now stays on the books as citable precedent. It remains to be seen, however, whether Sunnyvale is widely followed by the Courts of Appeal in other districts. An order denying depublication by the Supreme Court is of course not the same as an opinion issued by the Court, and the various districts of the Courts of the Appeal remain free to agree or disagree with the Sixth District’s reasoning in Sunnyvale. While the Supreme Court in the past frequently exercised its unusual authority under California Rules of Court, rule 8.1125, to prune the published law, more recent courts seem to disfavor this procedure. Many commentators likewise disfavor this rule in as much as it stymies valuable discussions in the Courts of Appeal about how laws should properly be construed. Thus, the Supreme Court’s denial of requests to depublish this opinion may reflect more on the current Court’s view that rule 8.1125 should be used sparingly than an endorsement of the Sunnyvale opinion itself.